SHANTILAL GIRDHARLAL VASANT vs. KANJIBHAI RAMJIBHAI VAGHELA

C/FA/773/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 773 of 2008

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ SHANTILAL GIRDHARLAL VASANT....Appellant(s) Versus KANJIBHAI RAMJIBHAI VAGHELA & 2....Defendant(s) ================================================================ Appearance: MR HA SEJPAL, ADVOCATE for the Appellant MR PARESH M DARJI, ADVOCATE for the Appellant MR VC THOMAS for MR VIBHUTI NANAVATI, ADVOCATE for the Respondent No. 3 RULE SERVED on the Respondents No. 1 - 2 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA

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C/FA/773/2008 JUDGMENT Date : 04/09/2014

ORAL JUDGMENT This appeal under section 173 of the Motor Vehicles Act [“the Act” for short] is at the instance of a claimant in a proceeding under section 166 of the Act and is directed against an award dated 15th September 2006 passed by the Motor Accident Claims Tribunal [Aux.] & Fast Track Court No.6, Ahmedabad [“tribunal” for short], in MACP No. 298 of 2003, thereby awarding an amount of Rs.5,10,706/- with interest at the rate of 6% p.a. from the date of application till realization. Being dissatisfied, the claimant has come up with this appeal for enhancement of the compensation and has restricted his claim to a further sum of Rs. 4.00 lakh. After going through the materials on record, there is no dispute that while the claimant who was aged 70 years of age at the time of the accident, was going for pilgrimage in a maruti car no. GJ 6K 7973 on 6th November 2002, due to negligence on the part of the driver of the said vehicle, the said car lost control and dashed with a tree, resulting in serious injuries to the claimant. Among the above injuries, there were 8 fractures in the wrist and from the knee to waist of the right side. A plate was inserted after the operation and there was also a fracture on the ankle for which a rod was inserted by operation and thereafter, he was shifted to Ahmedabad and treated in Sterling hospital for one month and a bone grafting was done. In the Sterling hospital, he was treated for several days and incurred total expenses of more than Rs.3,50,000/-. According to the claimant, he has sustained permanent disability, which according to the doctor was found to be 17%. The victim was a partner of a firm and was an Page 2 of 5

C/FA/773/2008 JUDGMENT income-tax assessee. From the income-tax return produced by him, it appears that his income from business source as partner was Rs. 78,586/-, apart from other income from other sources. The learned tribunal below, on consideration of the evidence on record found that due to negligence of the driver of the vehicle, the accident occurred, and the Insurance Company was liable to pay the said amount. The tribunal below calculated the total amount in the following way: Head Amount Pain, shock and suffering Rs. 18,000 Special diet. Rs. 5,000 Attendant & transportation charges Rs. 10,000 Medical bills Rs.4,31,806 Loss of income Rs. 45,900 Total Rs.5,10,706 There is no dispute that the Insurance Company has not filed any appeal or cross-objection in this appeal for reduction of the amount. After hearing the learned counsel for the parties and after going through the materials on record, I am at one with the fact that the victim has not suffered any financial loss from his business as would appear from the fact that even after the accident, he has not produced any materials on record to show that his income from business has reduced in any way. It appears that the medical bills produced have been accepted and a sum of Rs. 4,31,806/- has been awarded. Therefore, there was no scope of grant of prospective future loss from the business. Page 3 of 5

C/FA/773/2008 JUDGMENT I, however, find substance in the contention of Mr. Darji, the learned advocate for the appellant that having regard to the injuries suffered by the claimant at the age of 70 and since till today after 12 years of accident he is still alive with 18% disability, I am of the view that the award of Rs.18000/- only towards pain, shock and suffering cannot be supported. In my opinion, the above amount along with loss of amenity of life should be enhanced to Rs. 70,000/-. I, therefore, enhance the amount of compensation by Rs. 52,000/- with interest. I am also unable to approve the rate of interest granted by the learned tribunal below which was just 6% p.a. In my opinion, the accident having occurred in 2002, the appropriate rate of interest payable should be 8% p.a. from the date of filing of the application till realization. I, therefore, modify the award amount and enhance the same by Rs. 52,000/- with further direction that interest should be payable not at the rate of 6% p.a. but at the rate of 8% p.a. from the date of filing of the application till realization. The Insurance Company is directed to deposit the balance amount with interest before the tribunal below within two months from today. Immediately after the deposit of such amount, the tribunal will release the amount in favour of the claimant by account payee cheque on proper verification. The appeal is allowed to the extent indicated above. No costs. The Registry is directed to forthwith send the record and proceeding to the tribunal below. Page 4 of 5

C/FA/773/2008 JUDGMENT (BHASKAR BHATTACHARYA, CJ.) pirzada Page 5 of 5